美国银行业反垄断法规制经验及其借鉴

发布时间：2018-06-03 21:02

本文选题：银行业垄断 + 合并审查机制　；参考：《湖南大学》2011年硕士论文

【摘要】：银行业是一个高风险的行业,其健康发展对于一国的经济安全和稳定具有重要的作用,因此银行业在世界各国都普遍受到政府的高度规制。银行垄断一般具有专业性和复杂性的特点,且垄断带来的危害后果将触及社会经济各个层面,因此银行业反垄断不仅具有必要性,还具有重要性。美国是世界上银行业最发达的国家,也是反垄断立法最早的国家。虽然在“美国诉费城国民银行”一案之前,银行业曾长期排除在反垄断法的适用范围外,但美国现已形成了一套较为完善的银行业反垄断机制。银行业限制竞争的协议和滥用市场支配地位主要受反垄断一般法的规制,而银行合并反垄断审查已经逐步走向了多机构协调合作的阶段,审查标准和程序也得到了一定程度上的规范和统一,提高了法律实施的可预期性和效率。我国银行业虽然远不及美国发达,但银行业垄断问题同样存在。加上我国《反垄断法》颁布才不久,法律实施还存在着诸多问题。为了应对与日俱增的银行业垄断问题以及消费者的投诉,我国有必要逐步建立起一套系统的银行业反垄断法规制机制。在建立该机制时,我们可以学习美国的先进经验,给予银行监管机关相应的管辖权,并加强银行监管机关和中央反垄断执法机关之间的协调与合作。我国还应完善相应的配套法律,进一步完善相关法律责任。最后要明确的是,我国银行业不享有当然豁免,但由于银行业具有特殊性,某些行为可以享受“公共利益豁免。这种具有一定独立性但又与一般反垄断机制协调统一的银行业反垄断法规制机制的建立是我国银行业反垄断法规制的发展趋势。
[Abstract]:The banking industry is a high-risk industry, and its healthy development plays an important role in the economic security and stability of a country. Therefore, the banking industry in the world is generally highly regulated by the government. Banking monopoly generally has the characteristics of specialization and complexity, and the harmful consequences brought by monopoly will touch all levels of society and economy. Therefore, it is not only necessary but also important for banking to fight against monopoly. The United States is the most developed country in banking industry and the earliest country in anti-monopoly legislation. Before the case of American v. Philadelphia National Bank, the banking industry had been excluded from the scope of application of anti-monopoly law for a long time, but the United States has now formed a set of relatively perfect anti-monopoly mechanism of banking. The agreement on restricting competition and the abuse of market dominant position in the banking industry are mainly regulated by the general antitrust law, and the merger and antitrust examination of banks has gradually moved to the stage of multi-agency coordination and cooperation. The standards and procedures have been standardized and unified to a certain extent, and the predictability and efficiency of the implementation of the law have been improved. Although China's banking industry is far less developed than the United States, the banking monopoly problem also exists. In addition, there are still many problems in the implementation of the law only soon after the promulgation of the anti-monopoly law in our country. In order to deal with the increasing problems of banking monopoly and consumer complaints, it is necessary to establish a systematic regulation mechanism of banking anti-monopoly law in China. In establishing this mechanism, we can learn from the advanced experience of the United States, give corresponding jurisdiction to the banking supervision authorities, and strengthen the coordination and cooperation between the banking supervision authorities and the central anti-monopoly law enforcement agencies. Our country also should perfect the corresponding supporting law, further consummate the related legal responsibility. Finally, it should be made clear that China's banking industry does not enjoy ex officio immunity, but because of its particularity, some acts can enjoy "public interest immunity". The establishment of the banking anti-monopoly law regulation mechanism, which has certain independence and is coordinated with the general anti-monopoly mechanism, is the development trend of the banking anti-monopoly law regulation in China.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;D922.294

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